Waiving Goodbye to Liability

Q: Does signing a “waiver” really work to absolve someone from liability?

A: For a good answer to this question, I must relate to you some of the words of wisdom pounded into my head by Professor Tom Cady, the guru of Torts at the WVU College of Law. Every first year law student who has had the pleasure of sitting under the tutelage of Professor Cady can recite – in their sleep – the phrase: “All liability is based on fault.”

It is a short maxim, but one filled with significant meaning. You see, in order for someone to be found liable for a wrongful act they may have committed, “fault” must exist. The discussion about whether or not something is, or is not, a tort, we will leave for another day. Today, we address the issue of whether a signed piece of paper can stop the rushing onslaught of liability.

Let’s use the most classic example of a waiver to which we can all relate: our grade school field trip permission slip. Little Willy brings home a permission slip for Mommy or Daddy to sign. The permission slip says something to the effect of, “I hereby authorize Negligent Nanny School System to take Little Willy on a field trip to Antarctica. I further understand that the Negligent Nanny School System is not liable for the injury or death of Little Willy that may occur while en route to/from Antarctica, or while sightseeing thereon. Signed, Mommy and Daddy.”

To borrow from Professor Cady, if that permission slip actually absolves Negligent Nanny School System from liability, then I am going to get a license plate printed for my car that says, “Not responsible for any injury or death as a result of this vehicle.” After all, class, what is liability based upon? That’s right, “Fault!”

Regardless of what is written on a half sheet of paper, regardless of whether the permission slip bears the notarized signature of Mommy or Daddy, if Little Willy is attacked by a polar bear while snorkeling with penguins, someone is going to be liable.

Well, a permission slip (or some other form of a waiver) may absolve liability, but only if it is not against public policy to do so. In our example, Negligent Nanny School System’s permission slip cannot stand up because why? That’s right, “All liability is based on fault.” While Little Willy is under their care, if a Negligent Nanny school bus runs over him, the permission slip is out the door. Why? Because Negligent Nanny cannot point to the signed permission slip and say, in essence, “Hey, you gave us permission to run over your kid. Tough luck.” Liability is based on fault and waivers that attempt to completely do away with that simple premise are void.

Waivers are an all or nothing proposition, as Professor Cady taught me. Either they act as a complete bar against liability, or they are entirely void because they are against public policy.

Copyright: Jeremiah G. Dys, Esq. May not be used absent express, written permission. Please contact the author for permission to reprint.